Langer v. Vargas

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CHRIS LANGER, Case No.: 19-cv-01166-BAS-JLB 12 Plaintiff, ORDER DENYING CHRIS 13 v. LANGERS’S APPLICATION FOR APPEARANCE AND DEBTOR 14 ARNALDO VARGAS, et al., EXAM 15 Defendants. [ECF No. 27] [17] 18 On October 1, 2021, Defendant and Judgment Creditor Chris Langer filed an 19 Application for Appearance and Debtor Examination for Judgment Debtor Arnaldo 20 Vargas. (ECF No. 27.) For the reasons set forth below, the Court DENIES Judgment 21 Creditor’s application without prejudice. 22 I. DISCUSSION 23 A. Applicable Law 24 Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money 25 judgment by writ of execution. Fed. R. Civ. P. 69(a)(1). “The procedure on execution— 26 and in proceedings supplementary to and in aid of judgment or execution—must accord 27 with the procedure of the state where the court is located, but a federal statute governs to 28 the extent it applies.” Id. Accordingly, in ruling on Judgment Creditor’s motion, the Court 1 follows California’s statutory provisions for the enforcement of judgments, known 2 collectively as the Enforcement of Judgments Law, as set forth in California Code of Civil 3 Procedure §§ 680.010 through 724.260. 4 Judgment debtor proceedings under California law “permit the judgment creditor to 5 examine the judgment debtor, or third persons who have property of or are indebted to the 6 judgment debtor, in order to discover property and apply it toward the satisfaction of the 7 money judgment.” Imperial Bank v. Pim Elec., Inc., 39 Cal. Rptr. 2d 432, 437 (Ct. App. 8 1995). Debtor examinations are intended “to allow the judgment creditor a wide scope of 9 inquiry concerning property and business affairs of the judgment debtor,” Hooser v. 10 Superior Court, 101 Cal. Rptr. 2d 341, 345 (Ct. App. 2000), disapproved on other grounds 11 by Williams v. Superior Court, 3 Cal. 5th 531 (2017), and “to leave no stone unturned in 12 the search for assets which might be used to satisfy the judgment,” Troy v. Superior Court, [13] 231 Cal. Rptr. 108, 112 (Ct. App. 1986). 14 California Code of Civil Procedure § 708.110 provides: 15 (a) The judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a referee appointed [16] by the court, at a time and place specified in the order, to furnish information 17 to aid in enforcement of the money judgment. [18] (b) If the judgment creditor has not caused the judgment debtor to be 19 examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor. [20] 21 (c) If the judgment creditor has caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the [22] order if the judgment creditor by affidavit of otherwise shows good cause for 23 the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte. [24] 25 (d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for examination. [26] Service shall be made in the manner specified in Section 145.10. Service of 27 the order creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner [28] l 5 (e) The order shall contain the following statement in 14-point boldface type if printed or in capital letters if typed: “NOTICE TO JUDGMENT DEBTOR. 3 If you fail to appear at the time and place specified in this order, you may be A subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney’s fees incurred 5 by the judgment creditor in this proceeding.” 6 || Cal. Civ. Proc. Code § 708.110 (a)e). [7] 3 B. Analysis 9 Judgment Creditor applies for an order requiring Judgment Debtor Arnaldo Vargas 10 to appear and furnish information to aid in enforcement of the money judgment. (ECF No. 1 27.) Judgment Creditor has failed to meet the requirements of California Civil Procedure 3 Code § 708.110(b) and (c) in that he has failed to assert either that Judgment Creditor has 14 not examined Judgment Debtor within the last 120 days or that there is good cause to allow 15 an examination within 120 days of the previous examinations. ! 16 Il. CONCLUSION 17 Based on the foregoing, Judgment Creditor’s Application for Appearance and 1g || Debtor Examination is DENIED without prejudice. Judgment Creditor shall obtain a date 19 || and time for the judgment debtor exam from the CVB clerks, who can be reached by email 9 || at evb@casd.uscourts.gov, before refiling the request. 1 IT IS SO ORDERED. [22] Dated: October 5, 2021 bande [24] 95 n. Jill L. Burkhardt ited States Magistrate Judge [27] 28 ' Judgment Creditor submitted his application using a Central District of California form which does not include this required information. 9: