Home

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

CONTACT

Phone: 702-953-9617     Fax: 877-698-0678

E-Mail: jay [at] jayad.com

Offices in Las Vegas NV, and Newport Beach CA (by appointment only)

Connect by Twitter or LinkedIn

© 2020 Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. Other. Questions about this website should be directed to jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678. This website is https://calejl.com