Fallay v. City and County of San Francisco, 3:08-cv-02261

Judgment creditors First American Specialty Insurance Company, Cindy Lloyd, and Robert Dalton (FASIC) sought a withholding order against wages of Zainab K. Fallay to satisfy a money judgment against her husband, Augustine Fallay.
The matter was referred to the magistrate judge for post-judgment collection proceedings; a hearing was held and supplemental briefing requested.
Zainab submitted sworn declarations (after an initial unsworn letter) stating she and Augustine are separated, maintain separate finances, closed a joint account, and sleep on different floors of the same house.
Augustine previously testified they have been married since 2000, but the record contained no sworn evidence contradicting Zainab’s claim of separation.
FASIC challenged the form and timeliness of Zainab’s declaration and argued the facts did not show a complete and final break in the marriage under California law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Zainab’s declaration satisfied federal form requirements for a sworn statement	Zainab: her revised signed declaration states it is "under penalty of perjury" and includes a date and signature	FASIC: declaration was untimely and failed to meet 28 U.S.C. § 1746 formalities	Court: excused late filing; found the revised signed statement sufficiently ‘‘substantially’’ in the form required by § 1746
Whether a withholding order can reach Zainab’s wages given spouses’ separation	FASIC: wages of a spouse may be reached unless spouses are not separated under applicable standard	Zainab: she and Augustine are separated; wages are her separate property under California law	Court: found parties are separated; Zainab’s wages are separate property and not subject to withholding; denied FASIC’s motion

11601 Wilshire Assocs. v. Grebow, 64 Cal. App. 4th 453 (Cal. Ct. App. 1998) (state appellate decision relied on by Zainab as factually analogous regarding separation and property treatment)