Adkisson's

California Enforcement Of Judgments Law

Examination Proceedings

H&M Bay (2017)

 

H&M Bay, Inc. v. West Coast Transportation, LLC, 2017 WL 8180634 (C.D.Cal., Mar. 13, 2017).

 

United States District Court, C.D. California.

 

H&M BAY, INC., Plaintiff,

 

v.

 

WEST COAST TRANSPORTATION, LLC AND WEST COAST TRANS LINE, INC., Defendants.

 

Case No. CV 16-01744-VAP (DTBx)

 

Filed 03/13/2017

 

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

 

DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE

 

*1 This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, Chief United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

 

PROCEEDINGS

 

On April 20, 2016, plaintiff H&M Bay, Inc. ("plaintiff") registered a judgment in this District which had been entered on March 3, 2016, in the United States District Court for the District of Maryland (the "Judgment").1 The Judgment was in favor of plaintiff in the amount of $186,748.45, plus costs, against West Coast Transportation, LLC ("WC Transportation") and West Coast Trans Line, Inc. ("WC Trans Line") (collectively referred to herein as "West Coast" and/or the "Judgment Debtors.")

 

On August 11, 2016, plaintiff applied for a Judgment Debtor's Examination of Marco A. Gonzalez ("Gonzalez") as the representative of Judgment Debtors, which was granted on August 23, 2016. The judgment debtor examination was scheduled for September 29, 2016. On September 29, 2016, Gonzalez failed to appear in Court at the appointed time of 10:00 a.m. The Court delayed calling the matter in order to allow more time for his appearance. At 10:28 a.m., the Court called the matter. Attorney Alan Nakazawa appeared on behalf of plaintiff. Gonzalez, the designated examinee, was not present, nor was any representative of either WC Transportation or WC Trans Line.

 

On October 5, 2016, plaintiff filed an "Application for Order to Show Cause for Failure of Judgment Debtors to Comply With the Court's Order to Appear for Debtor Examination" ("First Application") (Dkt. # 8) for defendants' failure to comply with the Court's Order requiring Gonzalez to appear for a debtor examination. Thereafter, on November 1, 2016, plaintiff filed a "Notice to Vacate Hearing on Application for Order to Show Cause for Failure of Judgment Debtors to Comply with the Court's Order to Appear for Debtor Examination." The First Application was terminated on November 2, 2016 and this post judgment matter was closed on November 4, 2016.

 

On November 7, 2016, plaintiff filed a "Renewed Application for Order to Show Cause for Failure of Judgment Debtors to Comply With the Court's Order to Appear for Debtor Examination" ("Second Application") (Dkt. # 12) again, for defendants' failure to comply with the Court's Order requiring Gonzalez to appear for a debtor examination. On November 9, 2016, the Court scheduled a hearing on the Second Application for December 22, 2016, which was thereafter advanced to December 21, 2016. On December 21, 2016, the Court held a hearing on the Order to Show Cause as to Failure of Judgment Debtors to Comply with the Court's Order to Appear for Debtor Examination. Again, neither Gonzalez nor any representative of the Judgment Debtors appeared at the hearing.

 

*2 On January 10, 2017, plaintiff filed an "Application for Civil Contempt Citation Against West Coast Trans Line, Inc. Also Doing Business as West Coast Logistics, and Against West Coast Transportation, LLC" ("Contempt Application") (Dkt. # 17). In support of the Contempt Application, plaintiff filed a Declaration of Alan Nakazawa ("Nakazawa Decl.").

 

Thus, this matter is now ready for decision. As set forth herein, the Court recommends that the Contempt Application be DENIED.

 

FACTUAL AND PROCEDURAL HISTORY

 

On August 11, 2016, plaintiff filed an Application for Appearance and Examination re: Enforcement of Judgment. (Dkt. # 3.) In its Application, plaintiff sought an order "requiring Marco A. Gonzalez of West Coast Trans Line, Inc. and West Coast Transportation, LLC." to appear for examination. (Id.) Plaintiff submitted a proposed order with the Application containing identical language. (Id., Attachment 1; see also Nakazawa Decl. ¶ 9.) Thereafter, on August 23, 2016, the Court issued the proposed order, requiring "Marco A. Gonzalez of West Coast Trans Line, Inc. and West Coast Transportation, LLC" to appear for examination on September 29, 2016 at 10:00 a.m. in Courtroom 3 of the United States District Courthouse in Riverside ("Order"). (Dkt. # 5.) However, despite specifically naming Gonzalez as the person to be examined, plaintiff did not attempt to serve him with the Order. Instead, plaintiff asserts that the Order was served on the registered agent for service of process for WC Trans Line, namely, Elizabeth Mendoza ("Mendoza"), whose address for service of process is listed with the California Secretary of State as 2878 Campus Parkway, Suite C-3, Riverside, CA 92507. (Nakazawa Decl., Exhibit ["Exh."] A.)

 

Pursuant to the Certificate of Service ("Certificate") filed by plaintiff on January 26, 2016 (Dkt. # 6, Exhibit G to Nakazawa Decl.), plaintiff's process server, Shane Thompson ("Thompson"), attempted to serve Mendoza at the corporate address on seven separate occassions, with no success. (Certificate at 4.) Thompson also apparently obtained Mendoza's personal contact information and attempted service on her at her personal residence an additional nine times. (Id. at 4-5.) Finally, on September 18, 2016, Thompson attests that he spoke to Mendoza on the phone, and she informed him that she was out of town, and that he could leave the documents on her door step, and that "someone at the house will send documents to her." (Id. at 5.) Thompson indicated in the certificate that the Order had been "personally served." (Id.) The Certificate makes no mention of any attempt to serve either Gonzalez or WC Transportation.

 

LEGAL AUTHORITY

 

A judgment in United States District Court is enforced pursuant to Fed. R. Civ. P. 69, which provides that "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." As plaintiff is enforcing the Judgment in this state, California's Enforcement of Judgments Act (Cal. Code Civ. Pro. § 680.010, et seq.) applies to the instant analysis. Pursuant to Cal. Code Civ. Proc. § 708.110(a), a judgment creditor may apply for a court-ordered examination of a judgment debtor. The Ninth Circuit has held that California law controls the manner of service of post judgment enforcement proceedings. See Hilao v. Estate of Marcos, 95 F.3d 848, 853-54 (9th Cir. 1996). Thus, service of a debtor's examination order is governed by Cal. Code Civ. Proc. § 708.110(d), which provides: "The judgment creditor shall personally serve a copy of the order on the judgment debtor .... Service shall be made in the manner specified in Section 415.10." In turn, Cal. Code Civ. Pro. § 415.10 provides that "[a] summons may be served by personally delivery of a copy of the summons and the complaint to the person to be served."

 

*3 Accordingly, Section 708.110 required plaintiff to personally serve the Order on Gonzalez as the designated examinee for the Judgment Debtors. The statute does not provide for alternative methods of service other than personal service. Here, there is no evidence that plaintiffs even attempted to serve the Order on Gonzalez or on WC Transportation by any means, much less by personal service. Moreover, while plaintiff did serve Mendoza as the registered agent for service of process for WC Trans Line, it did not "personally deliver" a copy of the summons to her as required by Section 415.10. Thus, WC Trans Line was not served with the Order in the manner required by Section 708.110.

 

Had the Order referenced only the Judgment Debtors, plaintiff might at least have an argument that it complied with the spirit - if not the letter - of Section 708.110 with respect to WC Trans Line. However, plaintiff specifically chose to name Gonzalez as the intended examinee in both the Application and the Order. Accordingly, Section 708.110 required Gonzalez to be personally served with the Order. He was not. Therefore, he was under no obligation to attend the debtor's examination and, thus did not violate this Court's Order to appear.

 

CONCLUSION AND RECOMMENDATION

 

Based on the foregoing, the Court recommends that the Contempt Application be DENIED.

 

Footnotes

 

1

 

Pursuant to Rule 201 of the Federal Rules of Evidence, the Court may take judicial notice of that action. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts "may take notice of proceedings in other courts, both within the without the federal judicial system, if those proceedings have a direct relation to matters at issue" (citation omitted)).

 

 

 

ARTICLES

 

2016.4.30 … 529 Savings Accounts Not Exempt In California Under O'Brien

2015.12.28 ... The California Private Retirement Plan: Separating Fact From Fiction

 

QUICK LINKS TO STATUTES AND MORE

 

TITLE 9. ENFORCEMENT OF JUDGMENTS 680.010-724.260

DIVISION 1. DEFINITIONS AND GENERAL PROVISIONS 680.010-694.090

     CHAPTER 1. Short Title and Definitions 680.010-680.380

     CHAPTER 2. General Provisions 681.010-681.050

     CHAPTER 3. Period for Enforcement and Renewal of Judgments 683.010-683.320

          ARTICLE 1. Period for Enforcement of Judgments 683.010-683.050

          ARTICLE 2. Renewal of Judgments 683.110-683.220

          ARTICLE 3. Application of Chapter 683.310-683.320

     CHAPTER 4. Manner of Service of Writs, Notices, and Other Papers 684.010-684.310

          ARTICLE 1. Service on Attorney of Creditor or Debtor 684.010-684.050

          ARTICLE 2. Manner of Service Generally 684.110-684.140

          ARTICLE 3. Proof of Service 684.210-684.220

          ARTICLE 4. Application of Chapter 684.310

     CHAPTER 5. Interest and Costs 685.010-685.110

     CHAPTER 6. Enforcement After Death of Judgment Creditor or Judgment Debtor 686.010-686.020

     CHAPTER 7. Levying Officers 687.010-687.050

     CHAPTER 8. Enforcement of State Tax Liability 688.010-688.110

          ARTICLE 1. Enforcement Pursuant to Warrant or Notice of Levy 688.010-688.050

          ARTICLE 2. Enforcement of Judgment for Taxes 688.110

     CHAPTER 9. Enforcement of Support Judgments 689.010-689.050

     CHAPTER 10. Enforcement of Judgments by Labor Commissioner 690.020-690.050

     CHAPTER 20. Transitional Provisions 694.010-694.090

 

DIVISION 2. ENFORCEMENT OF MONEY JUDGMENTS 695.010-709.030

     CHAPTER 1. General Provisions 695.010-695.221

          ARTICLE 1. Property Subject to Enforcement of Money Judgment 695.010-695.070

          ARTICLE 2. Amount to Satisfy Money Judgment 695.210-695.221

 

     CHAPTER 2. Liens 697.010-697.920

          ARTICLE 1. General Provisions 697.010-697.060

          ARTICLE 2. Judgment Lien on Real Property 697.310-697.410

          ARTICLE 3. Judgment Lien on Personal Property 697.510-697.670

          ARTICLE 4. Execution Lien 697.710-697.750

          ARTICLE 5. Other Liens Created by Enforcement Process 697.910-697.920

 

     CHAPTER 3. Execution 699.010-701.830

          ARTICLE 1. General Provisions 699.010-699.090

          ARTICLE 2. Writ of Execution and Notice of Levy 699.510-699.560

          ARTICLE 3. Property Subject to Execution 699.710-699.720

          ARTICLE 4. Methods of Levy 700.010-700.200

          ARTICLE 5. Duties and Liabilities of Third Persons After Levy 701.010-701.070

          ARTICLE 6. Sale and Collection 701.510-701.680

          ARTICLE 7. Distribution of Proceeds of Sale or Collection 701.810-701.830

 

     CHAPTER 4. Exemptions 703.010-704.995

          ARTICLE 1. General Provisions 703.010-703.150

          ARTICLE 2. Procedure for Claiming Exemptions After Levy 703.510-703.610

          ARTICLE 3. Exempt Property 704.010-704.210

          ARTICLE 4. Homestead Exemption 704.710-704.850

          ARTICLE 5. Declared Homesteads 704.910-704.995

 

     CHAPTER 5. Wage Garnishment 706.010-706.154

          ARTICLE 1. Short Title; Definitions 706.010-706.011

          ARTICLE 2. General Provisions 706.020-706.034

          ARTICLE 3. Restrictions on Earnings Withholding 706.050-706.052

          ARTICLE 4. Earnings Withholding Order for Taxes 706.070-706.084

          ARTICLE 5. Procedure for Earnings Withholding Orders and Exemption Claims 706.100-706.109

          ARTICLE 6. Forms; Employer’s Instructions 706.120-706.129

          ARTICLE 7. Administration and Enforcement 706.151-706.154

 

     CHAPTER 6. Miscellaneous Creditors’ Remedies 708.010-709.030

          ARTICLE 1. Written Interrogatories to Judgment Debtor 708.010-708.030

          ARTICLE 2. Examination Proceedings 708.110-708.205

          ARTICLE 3. Creditor’s Suit 708.210-708.290

          ARTICLE 4. Charging Orders 708.310-708.320

          ARTICLE 5. Lien in Pending Action or Proceeding 708.410-708.480

          ARTICLE 6. Assignment Order 708.510-708.560

          ARTICLE 7. Receiver to Enforce Judgment 708.610-708.630

          ARTICLE 8. Collection of Judgment Where Judgment Debtor Is Creditor of Public Entity 708.710-708.795

          ARTICLE 9. Enforcement Against Franchise 708.910-708.930

          ARTICLE 10. Other Enforcement Procedures 709.010-709.030

 

DIVISION 3. ENFORCEMENT OF NONMONEY JUDGMENTS 712.010-717.010

     CHAPTER 1. General Provisions 712.010-712.070

     CHAPTER 2. Judgment for Possession of Personal Property 714.010-714.030

     CHAPTER 3. Judgment for Possession of Real Property 715.010-715.050

     CHAPTER 4. Judgment for Sale of Property 716.010-716.030

     CHAPTER 5. Other Judgments 717.010

 

DIVISION 4. THIRD-PARTY CLAIMS AND RELATED PROCEDURES 720.010-720.800

     CHAPTER 1. Definitions 720.010-720.030

     CHAPTER 2. Third-Party Claims of Ownership and Possession 720.110-720.170

     CHAPTER 3. Third-Party Claim of Security Interest or Lien 720.210-720.290

     CHAPTER 4. Hearing on Third-Party Claim 720.310-720.430

     CHAPTER 5. Creditor’s Demand for Third-Party Claim by Secured Party or Lienholder 720.510-720.550

     CHAPTER 6. Third-Party Undertaking to Release Property 720.610-720.660

     CHAPTER 7. Undertakings 720.710-720.800

 

DIVISION 5. SATISFACTION OF JUDGMENT 724.010-724.260

     CHAPTER 1. Satisfaction of Judgment 724.010-724.100

     CHAPTER 2. Acknowledgment of Partial Satisfaction of Judgment 724.110-724.120

     CHAPTER 3. Acknowledgment of Satisfaction of Matured Installments Under Installment Judgment 724.210-724.260

 

= = = = =

 

OTHER CALIFORNIA LAW OF NOTE IN JUDGMENT ENFORCEMENT

 

     CIVIL PROCEDURE

          Form of Judgments ~ CCP 664-674

          Amending Judgments ~ CCP 187

          Lis Pendens ~ CCP 405

          Sister State Judgments ~ CCP 1710.10-1710.65

          Foreign Country Judgments ~ CCP 1713-1724

          Mortgage Foreclosures ~ CCP 725a-730.5

          Assignment for Benefit of Creditors ~ CCP 1800-1802

 

     TRANSFERS IN DEFRAUD OF CREDITORS

          California Uniform Voidable Transactions Act ~ Civil Code 3439.01-14

          Conveyance Of Personal Property Without Delivery ~ Civil Code 3440-3440.09

          Undertaking In Voidable Transaction Action ~ Civil Code 3445-3449

 

     PROBATE CODE

          Protection of Beneficial Interests (Spendthrift Protection) ~ Probate Code 15300-15309

          Revocable and Self-Settled Trusts ~ Probate Code 18200 and 18201

 

Search California Judicial Council Forms

 

Selected Opinions

 

OTHER INFORMATIONAL WEBSITES BY JAY ADKISSON

 

 

  • Jay Adkisson - More about Jay D. Adkisson, background, books, articles, speaking appearances - https://jayadkisson.com

 

  • Captive Insurance - Licensed insurance companies formed by the parent organization to handle the insurance and risk management needs of the business - https://captiveinsurancecompanies.com

 

 

  • Judgment Collection - An explanation of common creditor remedies, strategies and tactics to enforce a judgment, including a discussion of common debtor asset protection strategies - https://collectingonajudgment.com

 

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