Opinion
Civil No. 09-cv-2739-GPC (BLM)
03-12-2015
TAMER SALAMEH, et al. Plaintiffs, v. TARSADIA HOTELS, et al., Defendants.
ORDER FOR JUDGMENT DEBTOR TAMER SALAMEH TO APPEAR FOR EXAMINATION AND PRODUCE DOCUMENTS
[ECF No. 374]
On March 11, 2015, Judgment Creditors 5th Rock LLC and MKP One, LLC ("Judgment Creditors") filed an ex parte application for an order requiring Judgment Debtor Tamer Salameh ("Salameh") to appear with certain documents for an examination. (ECF No. 374.) For the reasons set forth below, the Court GRANTS Judgment Creditors' application.
I. APPLICABLE LAW
Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money judgment by writ of execution. FED. R. CIV. P. 69(a)(1). "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." Id. Accordingly, in ruling on Judgment Creditors' applications, the Court follows California's statutory provisions for the enforcement of judgments, known collectively as the Enforcement of Judgments Law, as set forth in California Code of Civil Procedure §§ 680.010 through 724.260.
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., 39 Cal. Rptr. 2d 432, 437 (Cal. Ct. App. 1995). Debtor examinations are intended "to allow the judgment creditor a wide scope of inquiry concerning property and business affairs of the judgment debtor," Hooser v. Superior Court, 101 Cal. Rptr. 2d 341, 345 (Cal. Ct. App. 2000), and "to leave no stone unturned in the search for assets which might be used to satisfy the judgement." Troy v. Superior Court, 231 Cal. Rptr. 108, 112 (Cal. Ct. App. 1986).
California Code of Civil Procedure § 708.110 provides:
(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 the 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 of 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 andplace 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."
"Under California and federal law, judgment creditors may propound discovery to the judgment debtors, including requests for production and/or inspection of documents." Odnil Music Ltd. v. Katharsis LLC, 2007 U.S. Dist. LEXIS 45266, at *5-6 (E.D. Cal. June 8, 2007) (citing FED. R. CIV. P. 33, 34, and 69(a); CAL. CIV. PROC. CODE §§ 708.010, et seq., 2030.010, et seq., and 2031.010, et seq.). "If the judgment debtor fails to respond to discovery, the court may compel responses and impose sanctions if the debtor lacked substantial justification for failing to respond." Id. (citing FED. R. CIV. P. 34(b), 37(a); CAL. CIV. PROC. CODE §§ 2023.010, 2023.030).
II. CONCLUSION AND ORDER
The Court finds good cause to grant Judgment Creditors' ex parte application. It appears to the Court from the record and Judgment Crediotrs' application that Judgment Creditors obtained a $403,371.25 judgment in this action against Salameh and others on July 31, 2014 (see ECF No. 245); that execution on the judgment was issued out of this Court on March 3, 2015 (see ECF No. 373); that, to date, the judgment plus accrued interest on the judgment remains due and owing. Moreover, the examination and the requested documents appear relevant to these judgment debtor proceedings as they are aimed at "furnish[ing] information to aid in enforcement of the money judgment" against Art Attacks. CAL. CIV. PROC. CODE § 708.110(a). This is especially true in light of the policy of permitting "the judgment creditor a wide scope of inquiry concerning property and business affairs of the judgment debtor." Hooser, 101 Cal. Rptr. 2d at 345. Further, because Judgment Creditors have not examined Salameh within the last 120 days, the application is properly brought on an ex parte basis. CAL. CIV. PROC. CODE § 708.110(b).
Accordingly, the Court GRANTS Judgment Creditors' application for an order requiring Salameh to appear for a judgment debtor examination. IT IS HEREBY ORDERED:
1. Salameh is commanded to appear and submit to examination under oath at a supplementary proceeding ordered to be held at Courtroom 1G of the United States District Courthouse in and for the Southern District of California, located at 221 West Broadway, San Diego, California 92101, on May 6 , 2015 , at 10:00 a.m. for the purpose of furnishing information to aid in enforcement of the judgment rendered against him in this action.
2. Salameh is commanded to produce at the examination any and all original documents and copies of documents evidencing the existence of any assets to which Salameh (hereinafter referred to as "You" or "Your") claims a legal or beneficial ownership and/or interest in, including, but not limited to, the following:
a. All account statements or savings account passbooks showing any deposits or withdrawals of any funds in any bank, savings and loan institution or brokerage firm within the last four years.
b. All retirement account statements showing any balances, deposits, distributions and loans within the last four years.
c. All credit card account statements showing any balances, charges or payments within the last four years.
d. All financial statements prepared by You or on Your behalf within the last four years.
e. The registrations and certificates of ownership for any automobiles or any other motor-powered vehicles or boats which You own and/or use, or which are registered in Your name or names.
f. All notes and/or other documents which evidence any debts owed to You by any third party.
g. All deeds to real property in which You now claim or have claimed within the last five years a legal or beneficial interest, or are named as Grantee thereto.
h. All deeds of trust, trust documents or arrangements, life insurance policies, and annuity policies to which You claim a legal or beneficial interest, or in which you are named a beneficiary or owner.
i. All stock certificates evidencing ownership in any corporation of which You claim a legal or beneficial ownership, or in which You are named owner thereto.
j. All documents which evidence Your legal or beneficial interest in any general or limited partnership, limited liability company, sole proprietorship, or profit or non-profit corporation.
k. All business accounting books, records, and/or journals including but not limited to check books, cash disbursements journal and accounts receivable journal.
l. Any documents which evidence ownership or a legal or beneficial interest in options to purchase capital stock, commodities, real estate, or commercial deposits, or any item of value.
m. All statements of account evidencing Your current liabilities.
n. Copies of any complaints filed in any court which are now pending in which You are a party.
o. Copies of any Judgment now entered against You.
p. Copies of any Judgment entered in Your favor.
q. Appraisal reports and valuation of all personal property You own, valued at more than $200.00.
r. All documents reflecting Your interest in any trusts created by You or for which You act as trustee or are a beneficiary.
s. All loans reflecting any money You have borrowed from anyone within the last five years, and all documents reflecting any such loans, including but not limited to applications filed for such loans, credit reports, notes reflecting such loans, and copies of checks used to pay said loans.
t. All loans reflecting any money You have loaned to any third party within the last five years, and all documents reflecting any such loans, including the name and contact information of any borrower to whom You have
loaned money and copies of payments You have received for any such loan.
u. Any employment contracts to which You are a party or have been a party for the last five years.
v. All credit card receipts and invoices for the past four (4) years.
w. All documents related to the transfer of real property, to or from You or any entity in which You claim some interest, within the last 48 months.
x. All documents related to the transfer of personal property, to or from You or any entity in which You claim some interest, within the last 48 months.
y. Copies of all trust agreements for any irrevocable trust established by You as trustor (hereafter "Irrevocable Trusts") including but not limited to those created within the last ten (10 ) years.
z. Copies of all trust agreements for any revocable trusts established by You as trustor (hereafter "Revocable Trusts") including but not limited to those created within the last ten (10 ) years.
aa. Copies of all documents evidencing the transfer of any real or personal property to the Irrevocable Trusts within the last ten (10) years.
bb. Copies of all documents evidencing the transfer of any real or personal property to the Revocable Trusts within the last ten (10) years.
cc. All Your corporate records for any corporate entity in which You have an interest, including but not limited to the following:
i. Articles of Incorporation;
ii. By-Laws;
iii. Minute Book and all Minutes and Corporate Resolutions of the Corporation;
iv. Shareholders Record Book;
v. Shareholders List;
vi. All financial records for the last three (3) years;
vii. All employment-employee records for the last three (3) years;
viii. All employment agreements concerning the corporation and any employee employed by the corporation during the last three (3) years;
ix. Any corporate dissolution agreements; and
x. Copy of Your "Notice of Issuance of Securities" and "Consent to Sell Stock."
3. A copy of this Order together with the application is to be served on Salameh at least twenty (20) days prior to the examination date. Judgment Creditors shall thereafter file a certificate of service with the Court.
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.
This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e).
IT IS SO ORDERED. DATED: March 12, 2015
/s/_________
DAVID H. BARTICK
United States Magistrate Judge