Judge: Alison Mackenzie, Case: 21SMCV00029, Date: 2023-05-19 Tentative Ruling
Case Number: 21SMCV00029 Hearing Date: May 19, 2023 Dept: 207
Background
This is an unlawful detainer action concerning commercial
office space located at 1450 2nd Street, Santa Monica, CA. On January 6, 2021,
Plaintiff 1448 Second Street, LLC (“Plaintiff”) filed its Complaint against
Defendant Blankspaces, LLC (“Defendant”), alleging Defendant had failed to pay
rent.
On November 23, 2021, Defendant filed a motion for summary
judgment, arguing the Los Angeles County Eviction Moratorium prohibited
Defendant’s eviction for non-payment of rent due to Defendant’s COVID-19
related financial distress. In advance of the hearing, the Court issued a
tentative ruling granting Defendant’s motion for summary judgment. On February
18, 2022, before the Court issued a final order on the summary judgment motion,
Plaintiff filed a request for dismissal seeking to dismiss its case without
prejudice. The dismissal was entered the same day by the Court clerk and
subsequently on March 1, 2022, the Court issued an order stating Defendant’s
summary judgment motion was “now moot as a Request for Dismissal was filed and
entered on February 18, 2022.”
In an order dated September 9, 2022, the Court vacated
Plaintiff’s February 18, 2022, voluntary dismissal and granted summary judgment
in favor of Defendant on the merits of the motion. Having granted summary
judgment to Defendant, the Court determined Defendant the prevailing party in
this action, which entitled Defendant to recover its reasonable attorney’s fees
incurred in this action pursuant to a provision of the subject lease between
the parties. Pursuant to this lease provision, the Court awarded Defendant
$49,357.50 in attorney’s fees.
On September 19, 2022, the Court entered judgment in favor
of Defendant. On September 12, 2022, Defendant filed an application and order
for appearance and examination of Plaintiff’s managing member, Molly Marie
Ayala. Plaintiff filed objections to that application, though the parties were
ultimately able to resolve those issues and Molly Marie Ayala appeared for a
judgment debtor examination on December 6, 2022.
On March 8, 2023, Defendant filed a new application and
order for appearance and examination, this time directed at Maureen Suzanne
Russell, who is a member of Plaintiff. The application was signed by the Court
on March 13, 2023. On April 25, 2023, Plaintiff filed a motion to quash this
March 8 application. That same day Plaintiff filed an ex parte application
seeking to stay any debtor examination pending resolution of its motion to
quash. On April 26, 2023, the Court issued a minute order denying Plaintiff’s
ex parte application and issued a bench warrant for Maureen Suzanne Russell
based on her failure to appear for examination. The Court also continued the
debtor examination to May 19, 2023. On May 9, 2023, Defendant filed a notice of
ruling erroneously stating that “Plaintiff’s ex parte application to quash the
judgment debtor examination was denied.” It appears Defendant mistakenly
conflated the ex parte application to stay the examination with the separately
filed motion to quash the examination. Defendant has not filed any opposition
to Plaintiff’s motion to quash.
Legal Standards
Defendant’s
March 8, 2023, application is governed by Code Civ. Proc. § 708.110. Code Civ.
Proc. § 708.110(a) provides:
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.
Section
708.110(d) further states:
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 the examination. Service
shall be made in the manner specified in Section 415.10. 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.
Analysis
Plaintiff raises three arguments
in support of its motion to quash. First, it claims the March 2023 notice
violates Code Civ. Proc. § 708.110 because it was filed less than 120 days
after the December 6, 2022, debtor examination. Section 708.110 does not
prohibit such examinations, rather it provides in pertinent part:
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.
(C.C.P. § 708.110(c).) The
application was thus only improper under section 708.110 if it was entered
without good cause or in violation of a court order or court rule. Plaintiff
has not attempted to make any such showing, and instead bases its argument
solely on the fact that the application was filed less than 120 days from the
December 6 examination. Plaintiff has thus failed to carry its burden to show
the application violates section 708.110.
Further, any prejudice potentially
suffered by Plaintiff in being ordered to appear for examination less than 120
days after the December 6 examination without a separate showing of good cause
is obviated by the repeated continuances of the examination first from April 3
to April 26, and then from April 26 to May 19, each of which is well beyond the
120-day period contemplated in section 708.110.
Plaintiff next argues Defendant
did not personally serve Plaintiff or Ms. Russell as required by Code Civ.
Proc. § 708.110(d). Plaintiff’s motion attaches correspondence showing
Plaintiff expressly waived this service requirement and agreed Defendant could serve
the application by email on Plaintiff’s counsel, stating “I received a message
that a daughter of Maureen Russell was visited by a process server at the
daughter’s residence looking for Ms. Russell. If you are trying to serve Ms.
Russell with documents related to this dispute, I am authorized to accept
service on behalf of Maureen Russell.” (Ex. 3 to Peña Decl.) Counsel states he
only made this offer because he assumed Defendant was attempting serve
documents related to a pending breach of lease action or unlawful detainer
action against Plaintiff. (Peña Decl. at ¶7.) However, no such limitation
appears in his correspondence to Defendant’s counsel, rather he expressly
agreed to accept service of all “documents related to this dispute.” This
necessarily encompasses the subject application. Counsel does not claim he was
not actually authorized to accept service in this manner. Plaintiff has thus
expressly waived the personal service requirement imposed by Code Civ. Proc. §
708.110.
Finally, Plaintiff argues Ms.
Russell does not reside in this state and thus is not subject to the Court’s
jurisdiction and cannot be compelled to appear for a debtor examination. The
Court must reject this argument as Plaintiff has not put any evidence before
the Court showing Ms. Russell does not reside in California.
For these reasons, Plaintiff’s
motion to quash the March 8, 2023, application and order for appearance and
examination is DENIED.
Conclusion
Plaintiff’s
motion to quash is DENIED. Accordingly, the debtor examination shall proceed on
May 19, 2023.