Opinion
CASE NO. 1:13-cv-00824-LJO-SKO
2013-10-02
WILEMAN BROS. & ELLIOTT, INC., et al., Plaintiffs, v. HAVEN PACKING & COLD STORAGE, LLC, et al., Defendants.
ORDER FOR APPEARANCE AND
EXAMINATION OF JUDGMENT
DEBTOR HAVEN PACKING & COLD
STORAGE, LLC
(Docket Nos. 27, 28)
I. INTRODUCTION
On June 14, 2013, Plaintiffs Wileman Bros. & Elliott, Inc. ("Wileman Bros.") and Kaweah Container, Inc. ("Kaweah Container,) and Defendants Haven Packing & Cold Storage, LLC ("Haven Packing" or "Judgment Debtor"), Paul Hertzler ("Hertzler"), Caesar Mora ("Mora"), Louis Mora, Pat Simas, and Rigo Rios ("Rios") filed a Stipulation and Proposed Order for Entry of Final Judgment and Dissolution of Temporary Restraining Order. (Doc. 13.) The Court approved the parties' stipulation on June 14, 2013, and judgment was entered in favor of Wileman Bros. against Haven Packing, Hertzler, Mora, and Rios jointly and severally in the amount of $216,053.95, and in favor of Kaweah Container against Haven Packing in the amount of $40,806.50. (Doc. 14.)
On September 13, 2013, Kaweah Container filed an Application for Appearance and Examination of Judgment Debtor Haven Packing. (Docs. 27, 28.) On September 16, 2013, the Clerk's Office issued a Writ of Execution against Haven Packing in the amount of $42,651.20 ($40,806.50 in judgment due to Kaweah Container, plus interest). (Doc. 29.)
Accordingly, one or more officers, directors, managing agents, or other persons who are familiar with its property and debts of Judgment Debtor Haven Packing is ordered to appear personally on Wednesday, November 6, 2013, at 9:30 a.m. in Courtroom 7 of the United States District Courthouse, located at 2500 Tulare Street, Fresno, California, 93721, to furnish information to aid in enforcement of a money judgment by answering questions about the Judgment Debtor's property and debts.
II. DISCUSSION
Federal Rule of Civil Procedure 69 governs enforcement of judgment proceedings in federal courts. Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir. 1996). Rule 69(a) provides:
(1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution - and in proceedings supplementary to and in aid of judgment or execution - must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.Fed. R. Civ. P. 69(a)(1)-(2).
(2) Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person--including the judgment debtor--as provided in these rules or by the procedure of the state where the court is located.
Judgment debtor proceedings under California law "permit the judgment creditor to examine the judgment debtor, or third persons who have property of or are indebted to the judgment debtor, in order to discover property and apply it toward the satisfaction of the money judgment." Imperial Bank v. Pim Elec., Inc., 33 Cal. App. 4th 540, 546-47; see also Cal. Civ. Proc. Code §§ 708.110-708.205. All assets of a judgment debtor are subject to enforcement. Cal. Civ. Proc. Code § 695.010 (a).
California Code of Civil Procedure § 708.110 provides in relevant part:
(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 by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.Cal. Civ. Proc. Code § 708.110(a)-(e).
(b) If the judgment creditor has not caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make an order upon ex parte application of the judgment creditor.
(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 order if the judgment creditor by affidavit or otherwise shows good cause for 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.
(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. Service shall be made in the manner specified in Section 145.10. Service of 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 terminated by the court.
(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. If you fail to appear at the time and place specified in this order, 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 incurred by the judgment creditor in this proceeding."
California Code of Civil Procedure § 708.150 pertains to an order for examination of a corporation, partnership, etc., and sets forth that:
(a) If a corporation, partnership, association, trust, or other organization is served with an order to appear for an examination, it shall designate to appear and be examined one or more officers, directors, managing agents, or other persons who are familiar with its property and debts.Cal. Civ. Proc. Code § 708.150. Here, Kaweah Container's application does not require the appearance of a specific individual. (Docs. 27, 28.) Accordingly, Judgment Debtor Haven Packing "shall designate to appear and be examined one or more officers, directors, managing agents, or other persons who are familiar with its property and debts." Cal. Civ. Proc. Code § 708.150(a).
(b) If the order to appear for an examination requires the appearance of a specified individual, the specified individual shall appear for the examination and may be accompanied by one or more officers, directors, managing agents, or other persons familiar with the property and debts of the corporation, partnership, association, trust, or other organization.
(c) If the order to appear for the examination does not require the appearance of a specified individual, the order shall advise the corporation, partnership, association, trust, or other organization of its duty to make a designation under subdivision (a).
(d) A corporation, partnership, association, trust, or other organization, whether or not a party, may appear at an examination through any authorized officer, director, or employee, whether or not the person is an attorney.
Additionally, California Code of Civil Procedure § 708.160(a) provides that "[e]xcept as otherwise provided in this section, the proper court for examination of a person under this article is the court in which the money judgment is entered." Cal. Civ. Proc. Code § 708.160(a). Judgment was entered by this Court against Judgment Debtor Haven Packing and in favor of Kaweah Container on June 14, 2013. (Doc. 14.)
As such, Kaweah Container's application sets forth the showing required by Federal Rule of Civil Procedure 69(a)(2) and the applicable provisions of the California Code of Civil Procedure §§ 708.110, 705.150, and 708.160.
III. CONCLUSION AND ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Judgment Debtor Haven Packing shall designate one or more officers, directors, or managing agents who are familiar with Haven Packing's property and debts and who shall appear personally on Wednesday, November 6, 2013, at 9:30 a.m. in Courtroom 7 of the United States District Courthouse, located at 2500 Tulare Street, Fresno, California, 93721, to furnish information to aid in enforcement of a money judgment by answering questions about the Judgment Debtor's property and debts;
2. Kaweah Container must serve this order upon Judgment Debtor Haven Packing personally not less than ten (10) days before the date set for the examination and must file a certificate of such service with the Court; and
3. If Kaweah Container is unable to effectuate personal service on Judgment Debtor Haven Packing within the required time, Kaweah Container must file notice with the Court by no later than nine (9) days before the date set for the examination and inform the Court that the examination hearing must be taken off calendar.
NOTICE TO JUDGMENT DEBTOR. IF YOU FAIL TO APPEAR AT THE TIME AND PLACE SPECIFIED IN THIS ORDER, 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 INCURRED BY THE JUDGMENT CREDITOR IN THIS PROCEEDING. IT IS SO ORDERED.
This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e).
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE