Macias v. Lange

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ERIKA MACIAS and CYNTHIA RICH, Case No.: 14CV2763-GPC(JMA) 12 Plaintiffs, ORDER DENYING BRANCART & 13 v. BRANCART’S REQUEST FOR EXAM OF JUDGMENT DEBTOR 14 MYRON LANGE MYRON LANGE 15 Defendant. [16] 17 [ECF No. 202] [18] Before the Court is Judgment Creditor Brancart & Brancart’s (“Judgment Creditor”) [19] August 31, 2022 request for an order for the appearance and examination of Judgment [20] Debtor/Defendant Myron Lange (“Judgment Debtor”). ECF No. 202. For the reasons set [21] forth below, the Court DENIES Judgment Creditor’s request without prejudice. [22] I. BACKGROUND [23] On June 6, 2017, the District Judge entered an order granting in part Plaintiff’s [24] request for attorney’s fees and cost, awarding $87,578.00 to Judgment Creditor. ECF No. [25] 173. On June 22, 2017, the Clerk of the Court issued an Abstract of Judgment reflecting [26] an $87,578.00 money judgment in favor of Judgment Creditor against Judgment Debtor [27] (the “Judgment”). ECF No. 180. The Judgment has not been paid. ECF No. 202 at 2. [28] 1 Judgment Creditor represents that Judgment Debtor resides in San Diego County. 2 Judgment Creditor does not state whether or when it has previously examined Judgment 3 Debtor; instead, Judgment Creditor only indicates that it served a set of interrogatories and 4 a set of requests for production of documents on Judgment Debtor. Id. at 2. 5 II. DISCUSSION 6 A. Applicable Law 7 Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money 8 judgment by writ of execution. Fed. R. Civ. P. 69(a)(1). “The procedure on execution— 9 and in proceedings supplementary to and in aid of judgment or execution—must accord 10 with the procedure of the state where the court is located, but a federal statute governs to 11 the extent it applies.” Id. Accordingly, in ruling on Judgment Creditor’s motion, the Court 12 follows California’s statutory provisions for the enforcement of judgments, known 13 collectively as the Enforcement of Judgments Law, as set forth in California Code of Civil 14 Procedure §§ 680.010 through 724.260. 15 Judgment debtor proceedings under California law “permit the judgment creditor to 16 examine the judgment debtor, or third persons who have property of or are indebted to the 17 judgment debtor, in order to discover property and apply it toward the satisfaction of the 18 money judgment.” Imperial Bank v. Pim Elec., Inc., 39 Cal. Rptr. 2d 432, 437 (Ct. App. 19 1995). Debtor examinations are intended “to allow the judgment creditor a wide scope of 20 inquiry concerning property and business affairs of the judgment debtor,” Hooser v. 21 Superior Court, 101 Cal. Rptr. 2d 341, 345 (Ct. App. 2000), disapproved on other grounds 22 by Williams v. Superior Court, 3 Cal. 5th 531 (2017), and “to leave no stone unturned in 23 the search for assets which might be used to satisfy the judgment,” Troy v. Superior Court, [24] 231 Cal. Rptr. 108, 112 (Ct. App. 1986). 25 California Code of Civil Procedure § 708.110 provides: 26 (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 [27] by the court, at a time and place specified in the order, to furnish information 28 to aid in enforcement of the money judgment. [1] (b) If the judgment creditor has not caused the judgment debtor to be examined [2] under this section during the preceding 120 days, the court shall make the order 3 upon ex parte application of the judgment creditor. [4] (c) If the judgment creditor has caused the judgment debtor to be examined 5 under this section during the preceding 120 days, the court shall make the order if the judgment creditor by affidavit of otherwise shows good cause for the [6] order. The application shall be made on noticed motion if the court so directs 7 or a court rule so requires. Otherwise, it may be made ex parte. [8] (d) The judgment creditor shall personally serve a copy of the order on the 9 judgment debtor not less than 10 days before the date set for examination. Service shall be made in the manner specified in Section 145.10. [10] Service of the order creates a lien on the personal property of the judgment 11 debtor for a period of one year from the date of the order unless extended or sooner terminated by the court. [12] 13 (e) The order shall contain the following statement in 14-point boldface type if printed or in capital letters if typed: “NOTICE TO JUDGMENT [14] DEBTOR. If you fail to appear at the time and place specified in this order, 15 you may be 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 [16] incurred by the judgment creditor in this proceeding.” [17] Cal. Civ. Proc. Code § 708.110 (a)–(e). [18] B. Analysis [19] Judgment Creditor applies for an order requiring Judgment Debtor to appear and [20] furnish information to aid in enforcement of the money judgment. ECF No. 202 at 1. [21] Judgment Creditor has failed to meet the requirements of California Code of Civil [22] Procedure § 708.110(b) and (c) in that it failed to assert either that Judgment Creditor has [23] not examined Judgment Debtor within the last 120 days or that there is good cause to allow [24] an examination within 120 days of the previous examination. [25] III. CONCLUSION [26] 27 Based on the foregoing, Judgment Creditor’s Application is DENIED without 28 prejudice. Judgment Creditor shall obtain a date and time for the judgment debtor exam 1 || from the CVB clerks, who can be reached by email at cvb@casd.uscourts.gov, before 2 || refiling the request. 3 IT IS SO ORDERED. 4 ||Dated: 9/2/2022 " 6 United States Maaistrate Judae