Filed 2/1/21 Silas v. Arden CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARTINA A. SILAS,

Plaintiff and Respondent,

v.

JAMES ELLIS ARDEN,

Defendant and Appellant.

 B301200

 (Los Angeles County

 Super. Ct. No. BC 383823)

APPEAL from an order of the Superior Court of 

Los Angeles County, Edward B. Moreton, Judge. Affirmed.

Martina A. Silas, in pro. per., for Plaintiff and Respondent.

James Ellis Arden, in pro. per., for Defendant and Appellant.
2

Defendant James Ellis Arden appeals from an order 

denying an exemption for a separate employee pension individual 

retirement account (SEP IRA) in debt collection proceedings 

brought against him by plaintiff Martina A. Silas. Citing a

federal bankruptcy statute (11 U.S.C. § 522(n)) and Code of Civil 

Procedure1 section 704.115, Arden argues the trial court erred 

in concluding Silas could levy his SEP IRA to satisfy her over 

$500,000 judgment against him. 

The trial court correctly concluded that Arden failed 

to establish the applicability of section 704.115, which exempts 

private retirement funds from satisfying debts to the extent 

such funds are necessary to provide for the support of the debtor 

and/or the debtor’s spouse and dependents. (See § 704.115, 

subd. (e).) Arden bore the burden of proving entitlement to 

any claimed exemption under California law (see § 703.580, 

subd. (b)), yet offered no financial information to support his 

claim. 

Arden also argues that the IRA was exempt from Silas’s 

collection efforts because he had designated it as exempt in a

prior bankruptcy proceeding under a federal law that exempts 

SEP IRA funds from a debtor’s bankruptcy estate, regardless 

of a debtor’s financial need. But Arden never provided the trial 

court any evidence suggesting he claimed his SEP IRA as exempt 

in his bankruptcy proceedings, nor does the record on appeal 

contain any such evidence. Having failed to provide any evidence 

that he claimed the IRA as exempt from his bankruptcy estate 

under federal law, we need not consider what effect, if any, such 

1 Unless otherwise indicated, all further unspecified 

statutory references are to the Code of Civil Procedure.
3

an exemption would have on the state court levy at issue in the 

proceedings below. Nor does bankruptcy law otherwise apply in 

state debt collection proceedings. 

Accordingly, we affirm. 

FACTS AND PROCEEDINGS BELOW

A. Silas’ Judgment Against Arden and Unsuccessful 

Collection Efforts

In 2011, Silas prevailed in a malicious prosecution action 

against Arden and obtained a judgment awarding her over 

$500,000 in compensatory and punitive damages (the judgment). 

This court affirmed the judgment in December 2012 (Silas v. 

Arden (2012) 213 Cal.App.4th 75, 93), and the California 

Supreme Court denied review. (Ibid.)

For several years following the judgment, Silas undertook 

various efforts to collect thereon. In 2011, Silas obtained an 

order (the assignment order) assigning to Silas all rights to funds 

Arden earned or received from third parties in any capacity, 

without deductions for expenses,

2 and “required that, upon . . . 

Arden’s receipt of payments subject to the [a]ssignment [o]rder,”

he “turn over the funds to . . . Silas.” Over the course of several 

years, Arden repeatedly thwarted Silas’s efforts to enforce the 

2 Specifically, the order assigns to Silas, inter alia, 

the “right to payment for services and costs from any client or 

third party,” the “right to collect payment or cost reimbursement 

from a client or any party on any currently litigated case, or case

to be litigated in the future,” and the “right to collect property 

or money from any client(s) or third party(ies) irrespective of 

whether the services rendered are as an attorney or in some 

other capacity or in some other occupation.”
4

assignment order and collect on the judgment.

3 To date, Silas 

has collected less than $30,000 of the over $500,000 judgment.

B. Bankruptcy Proceedings and Nondischargeability 

of Silas’s Judgment 

In 2013, Arden filed for bankruptcy. In the schedule of 

personal property included in Arden’s bankruptcy filings, Arden 

listed an SEP IRA with a value of approximately $35,765.28

(the IRA). The record is devoid of any information regarding 

whether Arden included the IRA on any list of claimed deductions 

or exemptions in bankruptcy proceedings, or that he otherwise 

identified the IRA as an asset he was seeking to exempt from his

bankruptcy estate. 

Silas filed an adversarial proceeding in the bankruptcy 

action seeking to establish that the judgment reflected a

non-dischargeable debt, because it arose from “willful and

malicious injury by the debtor” under section 523(a)(6) of title 11 

of the United States Code [deeming such debt non-dischargeable 

in federal bankruptcy proceedings].) Following a trial on this 

issue, the bankruptcy court issued a judgment “order[ing] and 

adjudg[ing] that . . . [¶] . . . Arden’s entire debt to . . . Silas is 

nondischargeable pursuant to [section] 523(a)(6) [of title 11 of 

the United States Code].” As a result, on November 26, 2018, the 

3 For example, Arden was found guilty of three counts 

of contempt for violating the assignment order. He was also 

found guilty of four counts of contempt for failing to comply with 

a court order to produce financial documents in 2012, and was 

sanctioned for failing to comply fully with discovery requests in 

subsequent bankruptcy proceedings.
5

bankruptcy court lifted the stay4 on collection of Silas’s 

judgment.5

C. Silas’ Levy of the IRA and Arden’s Claim of 

Exemption

After the bankruptcy court lifted the stay on collection 

of the judgment, Silas levied on the IRA. The “memorandum of

garnishee” she received in response indicated that the IRA had 

a balance of $58,734. (Capitalization omitted.)

Arden filed a claim of exemption, describing the account

as “[a] fully exempt Individual Retirement Account, funded solely

by earnings within IRS contribution limits.” Arden identified 

“[section] 704.115[, subdivision] (b); and 11 U.S.C. § 522(n)” as 

the legal bases for his claimed exemption, and listed as factual 

support for his claimed exemption that “[t]he IRA was designed 

and has been used for retirement purposes only.”

Section 704.115, subdivision (b), which Arden identified 

to support his claim of exemption, is a part of California’s

“Enforcement of Judgments” law, a “ ‘ “comprehensive and 

precisely detailed scheme” governing enforcement of money 

judgments’ ” in California. (O’Brien v. AMBS Diagnostics, 

LLC (2016) 246 Cal.App.4th 942, 947 (O’Brien).) That law 

“effectuate[s] the California Constitution’s command that ‘a 

certain portion of the homestead and other property of all heads 

of families’ be ‘protect[ed], by law, from forced sale’ . . . [by] . . .

4 The filing of a bankruptcy petition automatically stays, 

inter alia, enforcement of judgments against the petitioning 

debtor. (11 U.S.C. § 362(a)(2).) 

5 According to the parties, this decision of the bankruptcy 

court is currently on appeal to the Ninth Circuit Court of 

Appeals.
6

exempt[ing] certain items of property from levy by creditors 

with money judgments.” (Id. at pp. 947–948.) Section 704.115 

identifies several types of such property, including certain private 

retirement accounts, such as the IRA here, that are exempt 

under certain conditions. (See § 704.115, subds. (a)(3) & (e).) 

The specific subdivision Arden cites as the basis for his claimed 

exemption, subdivision (b), provides: “All amounts held, 

controlled, or in process of distribution by a private retirement 

plan, for the payment of benefits as an annuity, pension, 

retirement allowance, disability payment, or death benefit from 

a private retirement plan are exempt.” (§ 704.115, subd. (b).) 

But subdivision (e) of section 704.115 carves out an important 

exception to that general rule, namely that “[n]otwithstanding 

subdivisions (b) and (d) . . . the amounts described in 

paragraph (3) of subdivision (a) [i.e., the maximum amount of 

funds in an SEP IRA exempt under federal tax law] are exempt

only to the extent necessary to provide for the support of the 

judgment debtor when the judgment debtor retires and for the 

support of the spouse and dependents of the judgment debtor.” 

(§ 704.115, subd. (e), italics added; see § 704.115, subd. (a)(3) 

[defining as a “private retirement plan” “[s]elf-employed 

retirement plans and individual retirement annuities or accounts 

provided for in [federal tax law], . . . to the extent the amounts 

held [therein] . . . do not exceed the maximum amounts exempt 

from federal income taxation under that [law]”].)

In his claim of exemption form, Arden did not check the 

box indicating that his claimed exemption “is made pursuant to 

a provision exempting property to the extent necessary for the 

support of the judgment debtor and the spouse and dependents 

of the judgment debtor” or that “[a] [f]inancial [s]tatement form 
7

[wa]s attached to this claim.” Nor did Arden submit a financial 

statement or any financial information in support of his claimed 

exemption at any point in the proceedings.

Arden also relied on section 522 of title 11 of the 

United States Code (federal section 522), a federal bankruptcy 

statute permitting an individual bankruptcy debtor to “exempt 

from property of the [bankruptcy] estate” (11 U.S.C. § 522(b)(1)) 

“retirement funds to the extent that those funds are in a fund 

or account that is exempt from taxation under” federal law 

(11 U.S.C. § 522(b)(3)(C)), including specifically SEP IRAs up 

to a certain amount. (See 11 U.S.C. § 522(n).) 

Silas opposed the claim of exemption on numerous 

grounds, and attached several exhibits bearing on Arden’s 

income and expenses—including Arden’s own statements, 

made either in response to written discovery requests or filed 

in Arden’s bankruptcy proceeding. These documents included, 

for example, a “statement of financial affairs” Arden filed with 

the bankruptcy court and interrogatory responses, collectively

indicating that Arden had earned at least $251,002.94 between 

2011 and 2019. (Capitalization omitted.) The exhibits also 

included excerpts from Arden’s 2013 bankruptcy case, in which 

he admitted that his average monthly expenses at the time

were $1,744.32, and that he had no housing expenses (because 

he lives with his spouse, who owns their home). Also attached 

to Silas’s opposition was a declaration describing Arden’s 

debtor examination testimony that he had inherited $473,000 

approximately three years earlier, and that he had purchased 

a townhome in Las Vegas with $183,000 of these funds. Arden

offered no evidentiary support for his exemption claim in his 

reply.
8

The court concluded that federal section 522 had no 

application to a state court levy, and thus denied the exemption 

on that basis. It further denied Arden’s claimed exemption 

under section 704.115, subdivision (b) on several bases, namely 

that (1) the IRA “contain[ed] funds that the judgment debtor 

was not entitled to place therein” as a result of the assignment 

order, (2) Arden bore the burden of proof but had not made

the necessary showing to support a claim of exemption

under section 704.115, because his claim “lack[ed] the required 

financial statements in support of the claim[ ],” and he “ha[d]

not demonstrated that the . . . funds [in the IRA] are necessary 

for his support when he retires,” and (3) “equitable principals

dictate[d] that the exemptions should be denied,” because Arden’s 

violations of court orders, concealment of assets, and refusal 

to cooperate with discovery triggered the doctrines of equitable 

estoppel and unjust enrichment.

Before making its ruling, the court announced its tentative 

view that Arden’s claims should be denied based in part on 

Arden’s failure to provide a financial statement, and thereafter 

offered Arden the opportunity to be heard. Arden offered some 

argument but did not request a continuance so that he might 

submit evidence of financial necessity the court had noted was 

lacking.

The court issued an order releasing the funds in the IRA to 

Silas. This appeal followed.
9

DISCUSSION

A. The Trial Court Did Not Err in Concluding

That Arden Failed to Make the Necessary 

Showing to Claim an Exemption for the IRA 

Under Section 704.115 

Section 704.115 exempts “[s]elf-employed retirement plans 

and individual retirement annuities or accounts” (§ 704.115, 

subd. (a)(3)) such as the IRA, from satisfying non-family law 

debts, but “only to the extent necessary to provide for the support 

of the judgment debtor when the judgment debtor retires and 

for the support of the spouse and dependents of the judgment 

debtor.” (§ 704.115, subd. (e).) 

In California state debt collection proceedings, “the 

exemption claimant has the burden of proof” to support his 

claim. (§ 703.580, subd. (b).) Thus, it was Arden’s burden below 

to prove he needed the IRA to support himself and/or his spouse

or dependents, “taking into account all resources that are 

likely to be available for the support of the judgment debtor 

when the judgment debtor retires.” (§ 704.115, subd. (e); see 

Schwartzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 626–627.) 

In addition, “[i]f property is claimed as exempt pursuant to [such] 

a provision exempting property to the extent necessary for the 

support of the judgment debtor and the spouse and dependents 

of the judgment debtor, the claim of exemption shall include a 

financial statement.” (§ 703.530, subd. (a).)

Arden argues the trial court erred in applying 

section 704.115. Specifically, he argues that (1) the burden 

of proof was on Silas to disprove the applicability of Arden’s

claimed exemptions, (2) to the extent it was Arden’s burden to 

provide a financial statement or any other financial information, 
10

California law required the court to continue the hearing so 

that Arden could procure it, and (3) the trial court erred in 

requiring a financial statement—or any documentation of 

financial need—in order for Arden to successfully claim his IRA

as exempt, because federal section 522 does not require this in 

bankruptcy proceedings. Because these are challenges based on 

the correct interpretation of applicable statutes and law, our 

review is de novo. (O’Brien, supra, 246 Cal.App.4th at p. 947.)

To support his argument that Silas bore the burden 

of disproving the applicability of his claimed exemption under 

section 704.115, he cites cases reflecting the general proposition 

that, in federal bankruptcy proceedings, when a debtor claims a 

federal exemption, that exemption “is presumptively valid, unless 

a party in interest objects and that objector satisfies its burden 

that the exemption is improperly claimed.” (In re Thiem (Bankr. 

D.Ariz. 2011) 443 B.R. 832, 836.) We do not dispute this general 

proposition of bankruptcy law. In California state debt collection 

cases like this one, however, the Code of Civil Procedure places 

the burden of proving the applicability of a California state 

law exemption like that under section 740.115 on the debtor. 

(§ 703.580, subd. (b).) That Arden’s burden would be different 

under a different law before a different court is of no moment. 

Arden’s argument that the court was required to continue 

the hearing in order to allow Arden to gather evidence to meet 

his burden of proof is also without merit. Arden cites language 

from the California Enforcement of Judgments law indicating 

that the court has the power “to permit amendments [to the 

pleadings] in the interest of justice” (§ 703.580, subd. (a)), and 

that if the court is not “satisfied that sufficient facts are shown by 

the claim of exemption (including the financial statement if one is 
11

required) . . . the court shall order the hearing continued for the 

production of other evidence, oral or documentary.” (§ 703.580, 

subd. (c).) But this language must be read in connection with 

earlier language in the same section that assigns the burden 

of proof to the exemption claimant. (See § 703.580, subd. (b).) 

Interpreting the section as Arden suggests would render 

ineffective that earlier subdivision, because the consequence of 

failing to meet one’s burden of proof would not be that the claim 

is denied, but rather that the court allows the claimant to try 

again. These two subdivisions can be harmonized, however, 

by reading the requirement that the court “shall” continue the 

hearing as requiring the court to obtain additional evidence if 

necessary before granting an exemption—not as mandating the 

court continue the hearing so the claimant gets a second chance 

to meet his burden of proof. (See DuBois v. Workers’ Comp. 

Appeals Bd. (1993) 5 Cal.4th 382, 388 [“ ‘the various parts 

of a statutory enactment must be harmonized by considering 

the particular clause or section in the context of the statutory 

framework as a whole’ ”].) And although it was certainly within 

the court’s discretion to grant a continuance so that Arden might 

gather evidence of financial need, Arden did not request one, 

even after the court made clear at the outset of the hearing that 

it viewed the lack of a financial statement as fatal to Arden’s 

claims.

Arden next contends that the court erred in denying the

claimed exemption regardless of his failure to show financial 

need, because “[f]or an IRA to be exempt under [federal 

section] 522(b)(3)(C), it must meet only two requirements,” 

neither of which involves financial documentation. But the 

requirements under federal law for establishing a federal section 
12

522 exemption in bankruptcy proceedings are of no assistance to 

Arden in establishing a section 704.115 exemption in state court 

collection proceedings. The California statutes governing such 

proceedings plainly require that Arden establish financial need

in order to claim an exemption for the IRA. (See §§ 704.115, 

subd. (e), 703.580, subd. (b).) Arden did not offer in the trial 

court any evidence for such financial need, be it in the form of 

a financial statement or otherwise.

6

Finally, Arden briefly argues that he has established 

financial need because Silas acknowledged Arden is collecting 

social security, and because he claims to have significant ongoing 

medical expenses due to leukemia. Even if the record supported 

6 Arden argues that the financial statement requirement 

is inapplicable to his claimed exemption, because he is seeking 

to exempt funds in his IRA based solely on the need for such 

funds to support himself, not his wife or dependents, and 

section 703.530, subdivision (a) requires a debtor to provide 

a financial statement only when the debtor claims a private 

retirement account is “necessary for the support of the judgment 

debtor and the spouse and dependents of the judgment debtor,” 

(§ 703.530, subd. (a), italics added.) Arden’s literal interpretation 

of this language would lead to the absurd result that only debtors 

with both a spouse and dependents, but not otherwise similarly 

situated debtors who are single and/or childless, would be 

required to provide a financial statement to claim an IRA as 

exempt under California law. Even if we were to accept this 

strained interpretation that Arden need not file a financial 

statement under section 703.530, subdivision (a), however,

it would remain Arden’s burden under section 703.580, 

subdivision (b) to establish financial need in some other way in 

order to be entitled to a section 704.115 exemption for his IRA. 

He has not done so.
13

such facts, as a matter of law, they could not establish Arden’s 

need for funds in the IRA without Arden also providing evidence 

regarding the extent of those medical expenses, the amount 

of his social security income, and “all resources that are likely 

to be available for the support of the judgment debtor when 

the judgment debtor retires.” (§ 704.115, subd. (e).) The court 

therefore correctly found that Arden failed to carry his burden of 

establishing the IRA is exempt under section 704.115.

B. Arden’s Federal Section 522 Arguments

Arden also argues that he was entitled to exempt his 

IRA from a state court levy because, in separate bankruptcy 

proceedings, he claimed the IRA as exempt under federal 

section 522, to which Silas did not object. But the record 

does not contain any support for Arden’s contention that he 

claimed the IRA as exempt in bankruptcy proceedings. Nor 

is such an exemption in bankruptcy proceedings automatic: 

A bankruptcy debtor must first “file a list of property that the 

debtor claims as exempt” (11 U.S.C. § 522(l) [debtor “shall” file 

such a list]), and failure to do so may prevent the debtor from 

claiming the exemption. (See In re Edmonds (Bankr. M.D.Tenn. 

1983) 27 B.R. 468, 469 [“[T]he burden is upon the debtor to 

claim property as exempt. Persons filing bankruptcy must make 

an affirmative effort to bring themselves within the exemptions 

provided by the Code.”].) No such list appears in the record. 

The only record citation Arden offers is to the personal property 

schedule in his bankruptcy petition (Schedule B Personal 

Property), on which Arden listed the IRA. (Capitalization 

omitted.) That schedule merely instructs the debtor to identify 

“personal property of the debtor of whatever kind,” and requests 

more specific ownership information about such property, such as 
14

whether the property is held jointly with the debtor’s spouse. 

The form does not mention exemptions. Thus, even if Arden is 

correct that property exempted from a bankruptcy estate is also 

exempt from levy under California law, he has failed to provide 

any evidence that he requested an exemption in the bankruptcy 

proceeding.

Arden briefly argues in a footnote that he did include the 

IRA on the requisite list of claimed exemptions, even though

this page of his bankruptcy filing does not appear in the record 

and was not submitted to the trial court. Arden faults Silas 

for offering as an exhibit to her opposition below only excerpts 

from his bankruptcy filing that do not include the pages that 

purportedly reflect he claimed the IRA as exempt from the 

bankruptcy estate. But if Arden wanted to rely on this purported 

fact, he bore the burden of establishing it below. He did not.

His citation to the rule in bankruptcy that a claimed federal 

exemption is presumptively valid in bankruptcy proceedings 

unless the objector proves otherwise—even assuming for the 

sake of argument this rule could apply in a state court collection 

action—assumes that the debtor has indeed claimed the property 

as exempt. Nothing in the record here reflects that Arden did 

so.7

7 On November 20, 2020, Silas moved this court to 

strike the references in Arden’s reply brief to Arden claiming 

a federal section 522 exemption in bankruptcy proceedings, as 

well as other portions of Arden’s reply brief she argues are not 

supported by the record on appeal and/or are improper for other 

reasons. In the alternative, her motion requested that this court 

disregard such improper matter. On December 9, 2020, this 

court deferred the motion to the panel. To the extent Arden’s 
15

Because the record does not support that he claimed the 

IRA was exempt in bankruptcy proceedings (let alone that the 

IRA actually was exempted from his bankruptcy estate), we need 

not consider whether and to what extent an asset that a debtor 

successfully exempts from a bankruptcy estate may be the 

subject of a levy in subsequent state court debt collection 

proceedings.

Finally, to the extent Arden argues that federal section 522 

provides an independent legal basis for exempting the IRA 

in state court debt collection proceedings even if he did not 

successfully exempt the IRA from his bankruptcy estate, Arden 

is incorrect. Federal section 522 allows a debtor initiating 

bankruptcy proceedings to exempt certain funds, such as an

IRA, from the debtor’s “bankruptcy estate”—that is, from the 

pool of property over which the bankruptcy court has jurisdiction

(28 U.S.C. § 1334(e)(1)) and from which the bankruptcy court 

can satisfy the claims of creditors. Federal section 522 thus 

defines what property a debtor may ask a bankruptcy court not 

to use to satisfy claims of the debtor’s creditors in bankruptcy 

proceedings. (See In re Williams (Bankr. C.D.Cal. 2016) 556 B.R. 

456, 459 (Williams) [bankruptcy “petition creates an estate to 

satisfy creditors’ claims” “consist[ing] of ‘all legal or equitable 

interests of the debtor in property’ when the petition is filed”]; 

see also In re Benn (8th Cir. 2007) 491 F.3d 811, 814.) Thus, 

by its own terms, federal section 522 does not speak to the 

property from which a state court may satisfy a judgment in 

non-bankruptcy proceedings, such as the debt collection action 

brief contains improper or unsupported contentions—including 

but not limited to contentions that Arden claimed the IRA as 

exempt from his bankruptcy estate—this court disregards them. 
16

below. (See O’Brien, supra, 246 Cal.App.4th at p. 948 [federal 

section 522 was irrelevant in debt collection action because it 

describes property that is “excluded from a debtor’s [bankruptcy] 

estate” and no bankruptcy proceedings were yet pending].) 

The authority Arden cites in arguing to the contrary is 

inapposite. Arden cites to the effect of the Bankruptcy Abuse 

Prevention and Consumer Protection Act (BAPCPA) in states, 

like California, that have “opted out of the federal exemption 

scheme and limited [bankruptcy] petitioners to the exemptions 

debtors may claim in non-bankruptcy cases [under state law].” 

(Williams, supra, 556 B.R. at p. 459.) “With the enactment

of BAPCPA in 2005, . . . a debtor who elects or is required to 

take state exemptions is also entitled to exempt ‘retirement funds 

[as described in federal section] 522(b)(3)(C).’ ” (Williams, supra, 

at pp. 459-460.) Arden cites this authority for the proposition 

that, “[a]s a result [of BAPCPA], debtors in opt-out states like 

California are not limited to the IRA exemption provided by 

state law but may, independent of state law, claim the exemption 

under [federal section] 522(b)(3)(C), subject to any applicable 

dollar limitation in [federal section] 522(n).” (Williams, supra, 

556 B.R. at p. 460.) Arden is correct that a debtor may do so

in bankruptcy proceedings to exempt an IRA from the debtor’s

bankruptcy estate; accordingly, all the authority Arden cites 

for this proposition reflects its application to bankruptcy 

proceedings. (See, e.g., In re Hamlin (Bankr. 9th Cir. 2012) 

465 B.R. 863, 869–870; Williams, supra, 556 B.R. at p. 459.) 

Because this appeal is not from a bankruptcy order or judgment, 

the authorities Arden cites are of no assistance to him. Nor 

does Arden cite a single case in which a court applied federal 

section 522 to determine a claim of exemption in California state 
17

debt collection proceedings. The trial court correctly concluded 

that federal section 522 did not provide a basis for granting 

Arden’s claim of exemption. 

C. The Trial Court Did Not Err in Permitting All

Funds in the IRA to be Levied

Arden also argues that, even assuming the trial court 

correctly denied the claimed exemption, it erred by permitting 

a levy of all funds therein. Arden cites section 704.115, 

subdivision (e), which provides that, “[i]n determining the 

amount to be exempt under this subdivision, the court shall 

allow the judgment debtor such additional amount as is 

necessary to pay any federal and state income taxes payable as 

a result of the [the maximum allowable amount in an SEP IRA] 

to the satisfaction of the money judgment.” (§ 704.115, subd. (e).) 

He argues that “[b]y allowing Arden's IRA to be emptied, the 

court did not leave Arden with any funds to even pay taxes” and 

that, “[g]iven the mandate of section 704.115[, subdivision] (e), 

the court committed error per se.” But Arden ignores that he 

bears the burden of proof on both the fact and the extent of the 

desired exemption. He failed to offer any evidence to support the 

amount of taxes, if any, he may be required to pay as a result of 

the levy, and thus has not established that a lesser amount of 

levy is appropriate. He also failed to raise this argument below, 

and has thus forfeited it. 

We need not address the parties’ additional arguments 

on appeal regarding the alternative grounds for ruling offered 

by the trial court—namely, that the funds in the IRA belonged 

to Silas under the assignment order, and/or that equitable 

principles supported a denial of the claimed exemption. Arden’s 

failure to establish financial need under section 704.115, the only 
18

potentially applicable exemption for the IRA, is sufficient to deny 

his claim for exemption.

DISPOSITION

The court’s order is affirmed. Respondent’s motion to 

strike or have the court disregard improper matter in appellant’s 

reply brief is granted to the extent set forth in this opinion. 

Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.